The main legal point established in the judgment is that the confirmation of a sale in favor of a stranger purchaser must be confirmed if the sale cannot be set aside under the provisions of Rules 89 to 91 of Order 21, and there is no provision in the Code for the cancellation of a sale merely because of the cancellation of the decree.

Wadsworth, J.

1. This revision petition challenges the correctness of an order confirming a sale when the decree upon which the sale was based had been set aside in appeal in the interval between the holding of the sale and the passing of the order of confirmation. Under this decree there were two sales. At the first the decree holder was the purchaser and the sale was set aside. On 11th December, 1939, there was a fresh sale and the present respondent, a stranger, purchased the property. Against this sale also there was an application under Order 21, Rule 90, Civil Procedure Code. That application was dismissed on 25th January, 1940; but for some reason the sale was not immediately confirmed. On 30th January, 1940, the defendants appeal succeeded and the suit was dismissed. On the following day the executing Court was appraised of this result and the matter of the confirmation of the sale was adjourned. Meanwhile a review application was filed against the dismissal of the application under Order 21, Rule 90. This review application was rejected on 15th March, 1940 and the sale was forthwith confirmed. It is contended that the executing Court had no jurisdiction to proceed with the execution of a decree which had ceased to have a judicial existence and that consequently the confirmation of the sale which is a step in aid of execution is an invalid act which has to be set aside.

2. Mr. Venkatachari for the petitioner admits that the decision of Madhavan Nair, J., in Sorimuthu Pillai v. Muthukrishna Pillai (1932) 65 M.L.J. 253 : I.L.R. 56 Mad. 808, is against him, but he contends that this decision is wrong. In support of this contention he points out that the learned Judge has been led astray by relying upon an incorrect head-note in order to differentiate the case of Ariatullah v. Sashi Bhusan Hhuazrah (1919) 55 I.C. 547 : 24 C.W.N. 73. The facts of the latter case are rather complicated, but I have satisfied myself that the head-note in the Indian Cases report is incorrect and that this was a case in which a sale was held under a decree which at" the time of the sale subsisted, but by the time when the sale came up for confirmation after a long series of judicial events which I need not elaborate, that decree had ceased to exist. The learned Judges held that in such a case confirmation of the sale ought to be refused. A similar view was also taken in a decision by a Bench of the Nagpur Chief Court (vide Hariram v. Gopikisan A.I.R. 1921 Nag. 121.) But I doubt very much whether this view is now tenable having regard to the more recent decisions of the Privy Council. In the case of Seth Nanhelal v. Umrao Singh (1930) 60 M.L.J. 423 : L.R. 58 IndAp 50 , the Privy Council had to deal with the case of a sale to a third party under a decree which was satisfied by a compromise between the parties in the interval between the sale and the confirmation. Their Lordships held that the parties to the suit could not get rid of the sale to a third party merely by asserting that the decree had been satisfied out of Court and that the only means by which the, sale could be avoided were those embodied in Order 21, and that if within 30 days of the sale there is no such application, it was obligatory on the Court under Rule 92 to pass an order confirming the sale not withstanding the circumstance that the decree-holder had admitted satisfaction of the decree. In this case it is pointed out that when the interests of a third party intervene, it is no longer a matter between the decree-holder and the judgment-debtor and that the process of confirmation follows automatically under Rule 92 when there had been no application under Rules 89 to 91 or any-such application has been disallowed. That is essentially the view taken by Madhavan Nair, J., in the case already referred to. The learned Judge points out that under Section 316 of the Code of 1882 there was a proviso the effect of which was that confirmation should follow provided that "the dec